Legal Question in Civil Litigation in New York

My estranged wife made all sorts of allegations against me to gain custody of our children to use them to acquire section 8 housing and other benefits.

She conspired with her relatives and a friend to do this.

All was later dropped after she received her benefits and the children were later returned to me as a result of a Child Protective Services and NYPD investigation was initiated by the children's school.

After two years of peace away from her, she has started again with false allegations, less the "domestic violence claim". She has recently been going to my sons's school to intimidate and harass them. Prior to her status of unemploment, she only visited twice for graduations.

I have filed for custody, because this was not done before. They have just been living with me for the past 2 years, as it was before she initially ran off with them and as a result of the previously mentioned issue with CPS and NYPD.

Can I sue for defamation, slander and libel to prevent her baseless attacks and from using the system to harass me and the children? And how would I begin this?

Respectfully Submitted,

Tony


Asked on 12/06/09, 7:28 am

2 Answers from Attorneys
Michael Markowitz Michael A. Markowitz, PC

You may have a cause of action for slander depending on what was said at the school. The statements made at the school must be false and not "opinion" statements. For example, an opinion is that you are a mean individual. A false statement is that you hit your children on Tuesday.

You may also have a cause of action for malicious prosecution if the mother again files for custody of the children and loses. The elements of a malicious prosecution action are a judicial proceeding initiated by defendant, that terminates in plaintiff's favor, brought without probable cause and with malice (Martinez v Schenectady, 97 NY2d 78, 735 NYS2d 868, 761 NE2d 560).

Mike.

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Answered on 12/11/09, 5:42 am
Locksley Wade Law Office of Locksley O. Wade

A suit for defamation is not likely to work in this case. However, you should keep accurate records (date, time, witnesses) of her statements to others because this can be probative in your custody case. You may want to consider trying for a restraining order through an attorney by using the evidence that you have already complied -if any. Good luck.

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Answered on 12/11/09, 5:42 am


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